A Judge With a View

Posted on Aug 6, 2009

By Marcia Alesan Dawkins

In what is often referred to as a post-racial and post-feminist Obama America, questions of prejudice and discrimination can often be treated with ambivalence, if they are treated at all. One reason for this ambivalence is the argument that the United States has reached a moment in which basic rights for all have been won. Constituents who support this post- perspective remind mainstream society that racial and gender equality is not only our destiny but our reality. Because anyone can be successful and independent, our society is now said to have transcended our culture wars.

Despite this peaceful ethos, culture wars are always lurking. Such has been the case with Judge Sonia Sotomayor’s confirmation to the U.S. Supreme Court. While many conservatives were up in arms over her “rhetorical flourish” and busied themselves making pointed ad hominem attacks via Twitter, I began to realize that what they were really objecting to was Sotomayor’s standpoint, or expression of her powerful and legitimate voice as a “wise Latina judge.” This, more than any judgment about affirmative action, abortion or the Second Amendment, constitutes the challenge Sotomayor has posed to her opponents. It has to do with her ability and willingness to exercise a reflective self-identity that also seeks to uphold the legal and cultural structures and that extend beyond the self.

Put differently, Sotomayor’s critics appear unwilling to acknowledge that members of certain groups may have special insights into particular lives and issues. More to the point, critics are unwilling to acknowledge that Sotomayor’s membership in these groups comes with privileges that can be considered a form of expertise, especially in a context in which the nation’s racial majority is changing. At the same time, critics use the expression of her standpoint to discount her ability to appeal to the law as the ultimate authority when exercising her profession. This works to pit her supposed ethnic or “folk” knowledge against official judiciary objectivity. It also implies that since she would express her standpoint, she would use it unfairly. These critiques have led Sotomayor to publicly qualify her own words, explaining that she did not intend to argue that life experiences could or should overrule the law.

As I watched the hearings and confirmation debate unfold, I was struck by three ways in which Sotomayor’s standpoint both answers her critics and raises new questions: recognition, status, and communication.

First, in keeping with the definition of a “standpoint” as that which lends an interpretive framework to a person’s life, Sotomayor recognizes her own subjectivity and partiality, and, in turn, her social privileges and location. That means that she may have some insights, but that she may also be limited in some of her views. Thus, she says, “the law commands a result.” In answering this way she also asks her colleagues and critics to recognize their own respective standpoints. Whether they are willing to do so varied as they confronted her on this issue.

Second, Sotomayor’s life experiences reflect a sense of identity developed through her engagement with many communities. This means that she holds an “outsider-within” status. Outsiders-within, like Sotomayor, can access the knowledge of the law but are questioned when they claim that knowledge and seek positions of power. Also, Sotomayor’s status as the first Latina and third woman to hold a seat also explains why we watch as critics give voice to their fears that she is an “activist judge.” Translation: Because she may not share all of the assumptions traditionally held by members of the court, and may find some of them inaccurate or even implausible, she may advocate on behalf of issues that require a new type of decision-making process that they can’t master. This fear is completely unfounded and can be put to rest by an objective study of her record, as Sen. Dianne Feinstein pointed out.

At the end of the day, the struggle over Sotomayor’s viewpoint and voice has important ramifications for legislative politics and identity politics in our country. Given her confirmation, these hearings and votes have been anything but post-racial or post-feminist. Rather, they have shown how race and gender work together to create similar and opposing experiences, identities and communication styles. And, perhaps more important, they have shown us what happens when differing experiences, identities and communication styles meet. This is one explanation for labeling Sotomayor’s standpoint “reverse racism” or “activism” or “prejudice” or “empathy” or “troubling”—simply to question its legitimacy and her qualification for the position on the basis of ethics.

Approached differently, however, such labeling signals the fact that Sotomayor might be right and that her ability to recognize her own and others’ limitations is a key ingredient for sound and ethical deliberation. After all, isn’t the point of judicial deliberation attending to different and distinct arguments about human experience? Isn’t justice about measuring the law against a person’s experiences and his or her own interpretations and articulations of these experiences? Historically, this kind of judging has been the backbone of landmark cases such as Brown v. Board of Education and Roe v. Wade.

It is exactly this kind of judging that makes Sotomayor a well-qualified judge who values honest communication and the law equally as grounds for sound decision making. Whichever way history chooses to tell it, the hearings and the vote have shown the importance of communication for a diversifying world—with all its political incorrectness—as well as its impact when our worlds and decisions converge.

AP / J. Scott Applewhite

Sonia Sotomayor fields a question at her Senate confirmation hearing last month. Sitting directly behind her, from the left, are her stepfather, Omar Lopez; her mother, Celina; and her brother, Juan Luis Sotomayor.